Tech

Apple and the FBI trade blows over digital security on Capitol Hill

FBI Director nominee James Comey pauses as he testifies on Capitol Hill in Washington, Tuesday, July 9, 2013, before the Senate Judiciary Committee hearing on his nomination. Comey spent 15 years as a federal prosecutor before serving in the George W. Bush administration, where he is best known for facing down the White House over a warrantless surveillance program.

The battle over whether or not Apple will make new software, a so-called "GovtOS," for the FBI to help it in its investigation of last year's San Bernardino terrorist attack made its way to congress on Tuesday.

In the early going, FBI Director James Comey owned up to his agency's mistake.

In testimony on Tuesday before the House Judiciary Committee discussing the FBI's quest to force Apple to create software that will let the agency hack an iPhone 5C that was used by one of the terrorists responsible for last year's deadly attack in San Bernardino, California, Comey admitted, "There was a mistake made in that 24 hours after the attack... the county at the FBI request made it harder to back up..."

Previously, the FBI had specifically said the reset was not a mistake. However, it had admitted that someone add the county had reset the Apple ID password tied to the iPhone 5C, making it impossible to access any data on the phone without the phone-specific PIN code. Now we know that the FBI made some request that the county, which actually owned the phone, may or may not have misinterpreted. Regardless, it resulted in a reset password and a locked device.

However, the Director quickly added that even if that had not happened, "There's no way we would have gotten everything from an iPhone backup." Comey was referring to Apple's willingness to, with a proper warrant, give access to unencrypted iCloud backup data, when it's available.

Narrow the focus

Comey and legislators also seemed to agree that the Apple versus the FBI case might best be handled by Congress. Comey granted, "I think that the courts are competent... to resolve narrow question of All Writs Act." It's a possible admission that the All Writs Act battle may already have been lost. On Monday, an Eastern District of New York ruled the DOJ can't use the act to force Apple to unlock a phone for the FBI.

Comey also testified that there are "a lot" of phones that the agency would like to access, but can’t due to technical limitations, the implication being that a ruling on the iPhone 5C could have wide-reaching implications. That perspective, though, still doesn’t sit well with Comey, who reminded the Committee that "This case is about this case."

To dispel any confusion about exactly what the FBI wants from Apple, Comey outlined three key requests:

Disable the self-destruct function on the iPhone after 10 unsuccessful login requests

Disable the iOS 9 function that, between unsuccessful guesses, increasingly spreads out time between each one, which could mean that brute force guessing could take years.

Set up a way for the FBI to electronically submit guesses

Legislators also pressed Comey on the possibility that whatever Apple builds for the FBI getting out into the wild. Comey responded, "We have confidence that Apple is highly professional at protecting its own innovation and own information."

Apple's turn

Apple's lead counsel Bruce Sewell later told the House Judiciary Committee that the notion that Apple's concern over building the software for the FBI is a "business model problem" makes his "blood boil."

He also dismissed FBI Director Comey's assertion that their requested technology would work only on this iPhone 5C running iOS 9. "There's no distinction between an 5C and a 6. The OS they want will work on any iPhone in use today," he said.

"This would affect everyone who owns an iPhone," contended Sewell.

Apple's general counsel also reminded the committee that Apple has no sympathy for terrorists, but later noted, " If Apple is forced to write a new OS...it will weaken our safety and security but will not affect the terrorists in the least."

Apple's argument against the FBI includes claims that the work would violate Apple's First and Fifth amendment rights. Sewell noted that the protection of code as Free Speech is already a pretty clear argument: "This is speech that Apple does not want to make." He further spelled out why Apple included the Fifth Amendment: It involves "conscription, forced activity, forced labor," added Sewell.

Susan Landau, a Professor of Social Science and Policy Studies at Worcester Polytechnic Institute who also testified before the committee, expressed serious concern about the FBI's request. "Its really about the way we are going to secure ourselves in the future. What law enforcement is asking for is going to preclude those strong security solutions."

While most of the hearing discourse was calm and almost friendly, there was one particularly contentious exchange between Rep. Trey Gowdy and Sewell.

"Can you give me a fact pattern," asked Rep. Gowdy, "where you would agree what the bureau is asking you to do?"

Gowdy asked the question four or five times before Sewell finally offered, "I am not aware of such a fact pattern."

Gowdy continued to press Sewell and, essentially, demanded some kind of legislative remedy for the issue from Sewell.

FBI Director Comey has repeatedly stated, including in Tuesday's testimony, that they would let Apple keep the code in their headquarters and the FBI would remotely access it. Sewell, however, seemed to contradict that statement, "The request that we got from government [was] that we should take this tool, put it on hard drive, sent it to FBI and they would put it on computer."

The results of this case could have international implications. If the FBI wins, will other countries see this as an opportunity to write new electronic access laws? Sewell told the committee, "I think the world is watching right now. What happens with regard to this particularly debate."

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